David Michael Johnson and Commonwealth of Australia

[1994] IRCA 187

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI 159 OF 1994

BETWEEN:
  DAVID MICHAEL JOHNSON

Applicant

AND:
  COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

On 11 August 1994 Spender J. directed, inter alia, that the respondent file and serve its outline of argument on the question whether Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”) applies to the discharge of a member of the Defence Forces without that member’s consent. On 15 November 1994 I heard argument directed to this issue.

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It is common ground that the applicant was a sailor in the Royal Australian Navy.  He was discharged from service without his consent on 4 June 1994. 

The respondent provided extensive written submissions.  I think I do these submissions justice in saying that three alternative propositions were advanced.  I propose to deal with these below in the form of a traverse of what I take to be presently the legal position.

The legislation relating to naval forces makes separate provision in relation to the engagement of “officers” as opposed to “sailors”.  Officers are appointed to the Navy, whereas sailors enlist in the Navy - Naval Defence Act 1910 ss.20-25. The appointment of an officer is held during the pleasure of the Governor-General - Naval Defence Act 1910 ss.12(1). Appointment as an officer does not create a civil contract between the Commonwealth and the person appointed - Defence Act 1903 s.13. There is no statutory provision similar to either of these provisions in relation to a sailor. In the absence of such a provision, it is necessary to consider the position at common law.

I do not consider it necessary for present purposes to cite the many authorities concerning the position at common law.  Quite a number of

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them relate to civil servants as distinct from military personnel.  Also, the passage of time has meant that in respect of civil servants the common law position has been substantially eroded by legislative intervention.

I start with the remarks of Windeyer J.  in Marks v Commonwealth 111 CLR 549 at 586 where His Honour said “servants of the Crown, civil and military, are by the common law employed only during the pleasure of the Crown. Except when modified by statute that rule has an overriding place in all engagements to serve the Crown.... The commissions of military officers do not .... state expressly that they were held during the Crown’s pleasure. But they were always within the general rule”.

In Coutts v Commonwealth 157 CLR 91, these comments appear

Wilson J. at 98:
           “The fundamental feature of the relationship at common law is that members of the armed services hold their engagement at the pleasure of the Crown”.

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At 99:
           “The passage of time does not appear to have affected the strength of the Crown’s common law prerogatives so far as the armed services are concerned”.

At 103:
           The disposition and membership of the armed services remains very much within the discretion of the Crown”.

Brennan J. at 105:
           “The power to dismiss an officer of the Defence Force, whether it flows from statute or the prerogative, is the power to dismiss at pleasure”.

Dawson J. at 120:
           “In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown...”

It seems to me that the position at common law still is that persons in military service hold their positions at the pleasure of the Crown.  If this -5-

be so, has this common law rule been overturned by the provisions of the Act which are inimical to the notion of termination of employment at pleasure? My view is that there needs to be a clear legislative intent in the Act to overturn the common law position in respect of military personnel, and that such intent does not emerge from the Act’s provisions.

The respondent submits that if it be wrong about the common law position, or its survival since the advent of the Act, the termination provisions of the Act in any event do not apply to those engaged in military service. It puts this argument on the basis that those provisions apply only to employment under contract. The respondent points to the use of the terms “contract of employment” and “contracts of employment” in Article 2 of the Termination of Employment Convention, 1982 (“the Convention”) as supporting its contention that the Act is intended to deal only with employment under a contract of service.

The modern judicial view is that the employment relationship is based on a contract between employer and employee - Automatic Fire Sprinklers v Watson 72 CLR 435 at 450, 451 and 454; Byrne & Frew v Australian Airlines Ltd (1994) 120 ALR 274 at 334 and

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Siagian v Sanel Pty. Ltd. (1994) 122 ALR 333 at 345.

The argument proceeds that when the Convention and the Act refer to “employment”, the type of relationship contemplated is one based in contract. Unless persons in military service are employed under contract, the termination provisions of the Act do not apply to them.

For present purposes, I consider it sufficient to refer to only the more recent cases touching on this aspect.  In The Commonwealth v Quince 68 CLR 227 at 243 Rich J. said “The services rendered to the Crown by members of those [fighting] forces differ in kind from those rendered by a servant to a private master under a contract of service....”
In The Commonwealth v Welsh 74 CLR 245 at 268 Dixon J. said “The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it.... at common law neither commission nor enlistment in the services does or can amount to a contract with the Crown....” In Commissioner for Railways (NSW) v Scott 102 CLR 392 Windeyer J. at 441 said “that military and naval service differ essentially from employment under contract with a private employer goes almost without saying”.

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In Coutts (supra) Dawson J. said at 120 “Military service... has always stood in a different position from service under a contract of employment with a private employer....The relationship is not a contractual one”.

Unless the High Court departs from these remarks, I consider I am constrained to hold that the engagement of military personnel is not contractual in nature. If the Convention and the Act which gives it force in Australia are meant to apply only to employment rooted in contract, then neither has application to military personnel.

The Act in terms does not expressly confine itself to “civilian” employees. I hesitate to conclude from the use of the terms “contract of employment” and contracts of employment” in Article 2 of the Convention that the termination provisions are to be read down so that their operation does not extend to military personnel. I prefer to uphold the respondent’s submission on this ground on the basis that the words “employment” and “employee” as used in the Convention, and therefore the Act (s.170CB), bear their modern meaning, namely employment and employee under a contract of service. When ss.170EA(1) speaks of an employee applying for a remedy in respect of termination of his or her employment, I do not consider the subsection

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contemplates a member of the Defence Forces making application to the Court following upon his or her discharge from service.

Given the conclusions stated above, I find it unnecessary to deal with the respondent’s further argument that if it be decided that the relationship between military personnel and the Crown is based in contract, the common law implies in such a contract a term that termination of that relationship is at the will of the Crown.  The argument then proceeds that such implied term must be clearly negatived only by the clearest possible express provision or by necessary implication, and none appears.

I declare that Division 3 of Part VIA of the Act does not apply to the discharge of a member of the Defence Forces without that member’s consent.

I certify that this and the preceding 7 (SEVEN) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ........ ........ ..
Judicial Registrar

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DATED:  31 January 1995

Counsel for applicant:  Ms. Linnane

Solicitors for applicant:  Bowen Lagois

Counsel for respondent:  Mr. Swan

Solicitors for respondent:  Australian Government
  Solicitor

Date of hearing:  15 November 1994
Date of judgment:  31 January 1995